Philly Feuds with Feds over Calorie Counts on Menus

Philadelphia city officials want an exemption for a 2008 local ordinance that goes further than Obamacare on nutrition labeling.

For all the talk about how the Affordable Care Act (ACA) is an overreach of federal power, Philadelphia officials have a different problem with the law: They think it doesn’t go far enough, specifically when it comes to menu-labeling rules.

One of the less heralded provisions of the 2010 law is a requirement that chain restaurants include calorie counts on their menus. The idea is that the next time you order an appetizer at Applebee’s, you’ll know exactly how many calories you’re putting into your system. But before the ACA was passed, the city of Philadelphia had already gone further than that. A 2008 ordinance mandated that chain sit-down restaurants include a lot of other nutritional information in addition to calorie counts -- stuff like sodium, trans fats and saturated fats.

The point of the ACA provision was a standardized system of menu labeling across the whole country, and as it stands now, it would overturn the city’s policy. But Philadelphia officials are petitioning the Food and Drug Administration (FDA) to exempt the city from the law and keep their ordinance in place.

“Let’s understand whether this works. It just seems like such a lost opportunity to not let it go forward,” says Giridhar Mallya, director of policy and planning at the Philadelphia Department of Public Health. “If we didn't petition at all, then information is literally being taken away from consumers. So in terms of our responsibility to protect Philadelphians’ health, we just couldn't let it go.”

New York City approved the nation's first menu-labeling policy in 2006, but it was limited to calorie counts, just like the ACA. Four states -- California, Maine, Massachusetts and Oregon, according to the National Conference of State Legislatures -- have passed similar policies, but they, too, only focus on calories. King County, Wash., had a rule that required restaurants to share additional information, but rewrote it to comply with the ACA after the law passed.

Only Philadelphia is fighting to maintain its local policy.

The city’s petition says the FDA has the authority to waive the federal law in the city and let Philadelphia keep its own menu labeling rules. The relevant federal law, revised by the ACA, includes language that allows the agency to exempt local laws from being overruled if the local law meets three conditions. Philadelphia officials argue their city ordinance does: 1) the rule was adopted to address a specific local need; 2) the rule does not affect interstate commerce; and 3) the rule does not lead to local businesses being in violation of federal law.

The latter two points seem self-evident -- the ordinance applies only to Philadelphia businesses and the whole dispute with the feds arose because the city’s rule is actually stricter than the federal law -- but it’s the first point that got Mallya and his colleagues riled up at the thought of their policy being undone by the ACA. Philadelphia has the highest rate of hypertension and cardiovascular disease among the 10 largest U.S. cities, according to his office; it ranks second in obesity and diabetes. All of those health conditions are linked to diets high in sodium and trans and saturated fats.

Those trends motivated the city to pass the law in the first place, Mallya says, so the FDA shouldn’t intrude on the city’s efforts to address its own public health problems. Plus for the time being, the health department isn’t even able to enforce its own rule while the petition sits in front of the feds.

The petition was filed with the FDA on Aug, 30, 2011, but it’s gone untouched. FDA spokeswoman Shelly Burgess said the agency didn’t have a timeframe for resolving the issue because it still hasn’t finalized its own rules for menu labeling. The proposed federal rules were submitted on April 6, 2011, but there hasn’t been any final action since as the FDA has negotiated with various stakeholders over what the final regulations should look like. Burgess declined to comment further.

“This is a huge undertaking, so we understand why it's taking so long,” Mallya says. “But it is frustrating that we have a law in place, and we feel like it's working, yet we can't enforce it.”

In the meantime, Philadelphia officials think they’re starting to see an impact from their five-year-old policy. More than 80 percent of the city’s chain restaurants meet the calorie labeling requirements, and 63 percent adhere to the rules for sodium, trans fat and saturated fat labeling. (Violations are supposed to be punishable by a fine of up to $500.)

Research is being conducted to gauge the influence on Philadelphians’ eating habits, and part of the city’s petition suggests it could serve as a laboratory to test whether providing additional information beyond calories actually leads to people making healthier choices.

“Before there was any menu labeling in the United States, there was this idea that if people want the information, they can find it. In theory, that's right, but in practice, it's not,” Mallya says. “So if we think sodium consumption is such a big public health problem, we can't just say people can find the information if they want it. People just aren’t going to ask for it.”

That’s why the city is fighting so hard to keep its policy when others have simply conformed to the federal law. Research has routinely shown that people don’t look up nutritional information on their own. At the same time, just one meal sold at these restaurants often exceeds the daily sodium intake recommended for at-risk populations, such as African-Americans or adults over 50.

So the public needs to know these things if Philadelphia is going to stop public health crisis it’s facing. The menu labeling policy isn’t the whole solution to that crisis, Mallya acknowledges, but it’s an important piece. The core of the city’s petition is the rule is “a local response to a local problem,” he adds. Federal preemption of local health departments’ policies can’t become the norm.

“Each of these things adds up to a larger whole, so when we subtract something, it affects our ability to address these issues collectively,” Mallya says. “Localities have to be able to respond to local circumstances that in many cases might be different from what's happening at the state or national level. So when federal laws preempt us, they really do prohibit us from serving public health needs of our constituents.”

Below is the what the menu looks like for Philadelphia's Hard Rock Cafe.